DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 38 of 27-01-2010

Decided on : 21-09-2010

Rakesh Kumar aged 42 years S/o Sh. Pawan Kumar, R/o Ward No. 9, Mehta Chowk, Bhikhi, Tehsil and District Mansa.

.... Complainant

Versus

1. ICICI Lombard General Insurance Co. Ltd., SCO 24-25, Sector 8C, Chandigarh, through its General Manager

2. ICICI Lombard General Insurance Co. Ltd., Ahluwalia Complex, Guru Kanshi Marg, Near Power House Road, Bathinda, through its Branch Manager.

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. J. S Walia, counsel for the complainant.

For the Opposite parties : Sh. Vinod Garg, counsel for the

opposite parties.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. This complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986. The complainant is the registered owner of Bolero XL bearing Regn . No. PB-31E/4228. The said Bolero has been purchased by him for his personal use and it was financed with M/s. Kotak Mahindra Prime Ltd., The said vehicle was comprehensively insured with the opposite parties vide Cover Note 54046710 dated 23-05-2009 for the period from 23-05-2009 to 22-05-2010 for Rs. 3,43,980/-. Amar Singh S/o Jangir Singh, R/o Barnala Road, Bhikhi is having friendly relations with the complainant. He took the vehicle in question from the complainant on 26-07-2009 for dropping his daughter in law Sukhwinder kaur to Airport at Delhi who had to go to Australia. The Bolero was being driven by Balwinder Singh S/o Balbir Singh R/o Village Samaon, Tehsil & District Mansa. He has been holding valid driving licence. On 27-07-2009 when the said Bolero was returning to Bhikhi, it dashed behind the stationery Truck No. HR-69/0932 parked on the Road in the area of V. Mauran, PP Zail Post Mehlan, Police Station Suman, District Sangur, thereby all the persons sitting in the Bolero including its driver sustained multiple injuries and Swaran Kaur, Amar Singh and Nachhattar Kaur died at the spot while Jarnail Singh and driver Balwinder Singh were taken to Hospital and Jarnail Singh succumbed to injuries. The matter was reported by Parminder Singh S/o Jarnail Singh to the police of PP Zail Post Mehlan, District Sangrur and on the basis of his statement DDR No. 6 dated 27-07-2009 has been lodged and the police conducted proceedings under Section 174 of Cr. P.C. The said vehicle was totally damaged and it was a total loss. The complainant intimated the opposite parties with regard to the accident. The opposite parties appointed their surveyor who conducted the survey and asked the complainant to take the vehicle to Sandeep Motors, Rajpura Road, Patiala (Authorised Dealers of Mahindra & Mahindra Ltd.,) and as per instructions of the opposite parties, the vehicle was shifted to Sandeep Motors in the second week of August, 2009 and the complainant paid Rs. 2000/- as towing charges. The surveyor of the opposite parties estimated the loss of the vehicle and got prepared an estimate from Sandeep Motors, Patiala to the tune of Rs. 6,47,144/-. Thereafter the said surveyor accompanied by another person, who alleged himself to be an Investigator of the opposite parties, met the complainant and conveyed that the vehicle is a total loss as per estimate and got signatures of the complainant on certain blank printed forms as well as other papers. They also got signatures of Sandeep Kumar and Rajesh Kumar residents of Bhikhi on certain papers on the pretext that the company has to make payment within shortest period and the signatures of the complainant and two other persons are required on the said paper. A copy of the estimate was also supplied to the complainant. The complainant received a letter dated 13-11-2009 from the opposite parties intimating that they are unable to pay the claim amount as the said vehicle was used for hire and reward. The complainant alleged that the opposite parties have wrongly rejected his claim. The complainant has prayed that the vehicle is a total loss and is lying parked in Sandeep Motors, Patiala at the instance of the opposite parties and as such, he is entitled to claim amount of Rs. 3,43,980/- i.e. the Insured's Declared Value alongwith parking charges, Rs. 10,000/- as cost and Rs. 1,00,000/- as compensation.

2. The opposite parties have filed their joint written reply and took many legal objections, one of those is that the Insurance policy is a private car package policy and the vehicle was to be used only for personal use as per terms and conditions of the policy whereas actually the vehicle was being used for hire and reward i.e. for carrying the passengers. Therefore, the claim was rightly repudiated vide letter dated 13-11-2009. For this, the opposite parties put reliance on law laid down by the Hon'ble Supreme Court in various authorities 2007 (II) CLT 186 (SC), 2009 (IV) CLT 313 (SC), 2009 (II) CLT 15 (SC) and as per these authorities, the law settled by the Hon'ble Supreme Court is that the Insurance policy is a contract between the parties and both the parties are bound by the terms and conditions thereof. The terms and conditions of the policy are to be strictly interpreted. Moreover, the complaint is bad for non-joinder of necessary parties as the complainant has not impleaded Kotak Mahindra Prime Limited as the vehicle was financed by the said company. Another legal objection taken by the opposite parties is that this Forum has got no territorial jurisdiction to try and decide the present complaint as no cause of action has arisen within the territorial jurisdiction of this Forum. For this, he has put reliance on law settled in 2010 CLT 252 (SC) that the branch office means that branch office where the alleged cause of action has arisen. The complainant is resident of Mansa and the entire alleged cause of action has been stated to be at Mansa. On merits, the opposite parties have pleaded that Amar Singh S/o Jangir Singh resident of Barnala Road, Bhikhi has no relation with the complainant rather the vehicle was hired by the said Amar Singh from the complainant. The vehicle was being used by the complainant for hire and reward in violation of terms and conditions of the policy. The opposite parties deputed Royal Associates, Kurukashetra, Investigating and detective Agency, who conducted investigation regarding use of the vehicle and recorded statement of complainant, Rakesh Kumar, Rajesh Kumar and Sandeep Kumar and also visited at Police Station Mansa. They submitted detailed investigation report dated 09-10-2009 whereby it was clear that the vehicle was being used for hire and reward in violation of the terms and conditions of the policy. Accordingly, the claim was rightly repudiated vide letter dated 13-11-2009. The vehicle was carrying 5 passengers which was clear from the statement suffered by the complainant during investigation which bears the signatures of the complainant himself. The opposite parties have denied that the vehicle was totally damaged and it was a case of total loss. The opposite parties deputed Satinder Pal Singh of Jallandhar as surveyor and loss assessor to conduct survey and assess loss. He conducted survey of the vehicle on 27-07-2009 at Sandeep Motors, Patiala and assess the loss to the tune of Rs. 99,600/- as per his survey report dated 24-10-2009. In para No. 7 of the written statement on merits, the opposite parties had denied that the surveyor of the opposite parties got estimate of the vehicle for repair rather the same was submitted by the complainant. Neither the surveyor accompanied any person who alleged himself to be Investigator nor the signatures of the complainant, Sandeep Kumar and Rajesh Kumar were obtained on any blank paper. So, the opposite parties pleaded that they have rightly repudiated the claim of the complainant as he was using the vehicle for hire and reward purposes in violation of terms and conditions of the policy. The opposite parties have also denied that the complainant is entitled for Rs. 3,43,980/- alongwith parking charges as the vehicle has not been parked at Sandeep Motors at the instance of the opposite parties.

3. Parties have led evidence in support of their pleadings.

4. Arguments heard and written submissions submitted by the parties perused. Brief written arguments filed by the complainant as well as the opposite parties were considered.

5. The learned counsels for the complainant submitted that the vehicle in question was taken by Amar Singh son of Jangir Singh, who has friendly relation with the complainant, for dropping his daughter-in-law at Delhi Airport and when the said vehicle was returning from Delhi, it dashed behind the stationary truck parked on the road. All the persons sitting in the vehicle sustained multiple injuries. Three persons died at the spot and one died later on. The opposite parties deputed the surveyor to assess the loss and as per instructions of the opposite parties and their surveyor, the complainant shifted the vehicle to Sandeep Motors, Patiala, an authorized dealer of Mahindra & Mahindra Ltd., The said surveyor got prepared an estimate to the tune of Rs. 6,47,144/-. The said surveyor and investigator met the complainant in the month of September, 2009 and conveyed him that the vehicle is a total loss and got the signatures of the complainant, Sandeep Kumar and Rajesh Kumar on certain blank papers. On 01-10-2009, the investigator asked the complainant , Sandeep Kumar and Rajesh Kumar to give in writing the factum of accident and on the dictation of the said investigator, the complainant, Sandeep Kumar and Rajesh Kumar had written the wordings and thereafter he got their signatures. The Insurance company repudiated the claim of the complainant vide letter dated 13-11-2009 on the ground that at the time of accident, the said vehicle was being used for hire and reward purposes. The learned counsel for the complainant argued that estimate was got prepared by Kuljit Singh vide Ex. C-4. The opposite parties have failed to contradict/deny the estimate prepared by Kuljeet Singh, in their affidavits. Balwinder Singh, driver of the vehicle in question has not been examined by the investigator. Sandeep Kumar and Rajesh Kumar in their affidavits Ex. C-17 & Ex. C-18 respectively have deposed that investigator has told them that their statements in their own handwriting is required for making payment of claim. The learned counsel for the complainant further argued that in the present case, the opposite parties have appointed surveyor again which they could not appoint until and unless they take permission of Insurance authority/Controller under Section 64UM of Insurance Act, 1938. The learned counsel for the complainant further argued that claim has been repudiated on false ground without any cogent evidence. In this regard, he placed reliance on 2004(I) CPR 630 M.P wherein it was observed that insurance claim was allowed and jeep was damaged. On the affidavit of the persons travelling in jeep, held that said alleged violation of terms of policy was not the cause of accident. He further relied upon the authority 2009(IV) CPR 241 wherein Hon'ble National Commission held that where the authorised garage had assessed the damage of the insured vehicle and surveyor reduced the amount substantially, he was supposed to give sound and cogent reasons and in absence of such reasons, such report was not acceptable.

6. On the other hand, learned counsel for the opposite parties has submitted that complainant has obtained private car package policy for the vehicle in question whereas at the time of accident, he was using the vehicle for commercial purposes i.e. for hire and reward. He raised point of jurisdiction on the ground that complainant is resident of Mansa whereas the accident has taken place in Suman, District Sangrur meaning thereby that no cause of action has arisen within the jurisdiction of this Forum. In this regard, he placed reliance on 2010(1) CLT 252 (SC) wherein Hon'ble Supreme Court held that branch office means that office where cause of action has arisen. The learned counsel for the opposite parties further submitted that the opposite parties deputed investigator who thoroughly investigated the matter and submitted investigation report Ex. R-13 & Ex. R-14 and recorded the statements of complainant and two others vide Ex. R-15, Ex. R-16 & Ex. R-17, from where it is clear that at the time of accident, the vehicle in question was carrying passengers for hire. The complainant admitted that he kept a regular paid driver on monthly basis for running the vehicle. The learned counsel for the opposite parties also submitted that Sukhbir Singh S/o Amar Singh and Nachhattar Kaur who were travelling in the vehicle have suffered statement on oath before M.A.C.T Mansa in claim petition titled Sukhhbir Singh Vs. Naresh Kumar which is Ex. R-6 & Ex. R-7, that vehicle was taken on rent which means that the vehicle was being used as a taxi. As per Insurance policy Ex. R-12, it is clearly mentioned that the vehicle cannot be used for hire and reward i.e. for commercial purposes. In this regard, he referred law laid down in 2009(1) RAJ. 672 (SC). He further submitted that insurance policy is a contract between the parties and both the parties are bound by it. He took support of law laid down in 2007(2)CLT 186 (SC), 2009(4) CLT 313 (SC) and 2009(2) CLT 15 (SC). The learned counsel for the opposite parties urged that opposite parties deputed surveyor who conducted survey and assessed the loss vide survey report Ex. R-18 at Rs. 99,600/- and the said surveyor report is duly supported by affidavit of the surveyor Ex. R-2. The survey report is an important document and should be accepted unless there are cogent reasons for discarding the same. For this, he has taken support by the law laid down by the Hon'ble Supreme Court in 2009(3) CLT 417 (SC).

7. The main issues involved in the case in hand are that complaint lacks jurisdiction; complainant has breached policy terms and conditions as at the time of accident he was using the vehicle for hire and reward purposes i.e. for commercial purposes whereas the vehicle was insured under private package policy; the survey report of surveyor is to be treated final and the Kotak Mahindra, a financer of the said vehicle was not impleaded as party to the complaint.

8. . The opposite parties have filed application for dismissal of the complaint on the point of jurisdiction. Reply of application was also filed by the complainant. The Opposite party i.e. ICICI Lombard General Insurance Co. has no office at Mansa. The complainant has purchased the Insurance policy Ex. C-2 of the vehicle in question from Bathinda office of the opposite party and the claim has been repudiated through Bathinda Branch of the ICICI Lombard General Insurance Co., Section 11(c) of the Consumer Protection Act, 1986 envisage that the Jurisdiction of the Forum - A complaint shall be instituted in a District Forum with the local limits of whose jurisdiction...(c)..... the cause of action, wholly or in part, arises. Thus, this Forum has the territorial jurisdiction to try and decide the complaint. In this regard, the complainant took support by the precedent laid down by Hon'ble State Commission, Union Territory, Chandigarh in 2008(1) CPR 229 titled Hardass Singla Vs. Nimantran Banquets and Another wherein it has been held that :-

   “ Consumer Protection Act, 1986 – Section 17(2)(c) – Jurisdiction – Complainant booked banquet alongwith lawn of Ops for marriage of his brother to be held on 6-5-2007- Ops failed to make available the banquet hall at proper time – Complaint filed – Opposed – Plea, banquet hall situated outside jurisdiction of the commission – Held, amount for booking of banquet hall was received at Chandigarh – Since part of cause of action had arisen within jurisdiction of commission i.e. at Chandigarh, so this State Commission has got jurisdiction to try the complaint.”

   The learned counsel for the opposite parties has failed to apprise this Forum regarding the exact territorial jurisdiction as the opposite parties have no-where in their reply as well as in their application dated 19-07-2010 disclosed that if the complainant had not purchased the policy from Bathinda then from which place, he has purchased the policy as there is no branch office at Mansa. Therefore, the complainant had rightly made Bathinda Branch as opposite party. Mere raising an objection is not sufficient. The opposite parties should put strict proof to their averments. The learned counsel for the opposite parties referred the law laid down by the Hon'ble Supreme Court in 2010(1) CLT 252 (SC) that branch office means that office where cause of action has arisen and in the case in hand, part of cause of action has arisen at Bathinda Branch as the complainant has purchased the insurance policy through Bathinda Branch office and his claim has been repudiated at Bathinda Branch office. Thus, this Forum has the territorial jurisdiction to try and decide this complaint. Hence, the application dated 19-07-2010 filed by the opposite parties is hereby dismissed.

9. The opposite parties have repudiated the claim of the complainant on the ground that the vehicle in question was insured under private package policy whereas at the time of accident, it was being used for hire and reward i.e. for commercial purposes. In this context, the learned counsel for the opposite parties has taken support of statements Ex. R-6 and R-7 which is a copy of MACT application and affidavit of Sukhvir Singh respectively. Sukhveer Singh has suffered a statement before MACT CW-1 on S.A. that “I had taken the Bolero on rent. I do not know if Bolero is used as Taxi.” This statement of Sukhveer Singh cannot be relied upon as at the time of accident Sukhveer Singh was at Melbourne and was working there. Moreover his version in the statement is contradictory as on one side he has said the Bolero was taken on rent and on the other he has given statement that he did not know if Bolero is used as Taxi. Ex. R-7 is the affidavit of Sukhveer Singh. This document also does not advance the case of the opposite parties for the reason that at the time of accident, said Sukhveer Singh was at Melbourne. To prove his version, the learned counsel for the opposite parties has also relied upon the statements of Rakesh Kumar, complainant, Rajesh Kumar and Sandeep Kumar Ex. R-15 to Ex. R-17 respectively, recorded by the investigator of the opposite parties. Firstly, the aforesaid persons have filed affidavits Ex. C-16, Ex. C-18 and Ex. C-19 that on the dictation of investigator, they have written words as per his dictation and signed underneath the same. However, if for arguments sake if it be admitted that the aforesaid persons wrote the statements of their own, then also it is nowhere written in Ex. R-15 to Ex R-17 that vehicle in question was being used as taxi or on hire and reward i.e. for commercial purposes. Hence, the opposite parties cannot reject the claim of the complainant on the ground that vehicle in question was being used for commercial purposes. The support can be sought from the law laid down by the Hon'ble Supreme Court of India in 2008(3) RCR (Civil) 193 titled National Insurance Co. Ltd., Vs. Nitin Khandelwal wherein it has been held that :-

   “Car insured for personal use, but used as taxi – Theft of car – Insurance company cannot reject the claim on the ground of breach of contract.

   Theft of Car – Insurance company rejected the claim on the ground that car was insured for personal use but it was being used by the respondent as a taxi which violated terms of Insurance policy – Held, Insurance company was liable - Held – Even assuming that there was a breach of condition of the insurance policy, the appellant Insurance Company ought to have settled the claim on non-standard basis – The Insurance Company cannot repudiate the claim in toto in case of loss of vehicle due to theft.”

   Reliance can also be put on 2005 (III) CPJ 774 titled United India Insurance Co. Ltd,, Vs. Moola Ram wherein Hon'ble Rajasthan State Consumer Disputes Commission, Jaipur, has held that “ Insurance - Repudiation of claim – Breach of policy – vehicle insured for personal purposes, being used for hire and reward at accident time – Hiring of vehicle has no nexus with cause of accident which took place due to rash and negligent driving of driver – Complaint allowed by Forum – Hence appeal – Accident totally unrelated to carrying of excess passengers – Order of Forum upheld.”

10. The complainant has submitted that the opposite parties have deputed Kuljit Singh as surveyor whereas the opposite parties had denied this fact and stated that Kuljit Singh was never appointed as surveyor vide separate statement dated 04-06-2010 given by the learned counsel for the opposite parties. In estimate Ex. C-4, the name of surveyor is written as Kuljit Singh, who has got prepared the estimate to the tune of Rs. 6,47,144/- from authorised repairer of M/s. Mahindra & Mahindra Ltd., but no affidavit or any other document has been placed on file by the complainant to show that Kuljit Singh was deputed as surveyor by the opposite parties. Hence, the estimate got prepared by one Kuljit Singh cannot be relied upon. On the other hand, the opposite parties have placed on file affidavit of Satinder Pal Singh. Surveyor & Loss Assessor Ex. R-2 to the effect that he conducted the survey of the accidental vehicle in question, noted the damages and assessed the loss to the tune Rs. 99,600/- and submitted the report dated 24-10-2009 alongwith loss assessment sheet. He has deposed in his said affidavit that vehicle is three years is old and the depreciation has been charged as per rules.

11. As discussed above, a perusal of record reveals that Kuljit Singh was never appointed as surveyor by the opposite parties. Hence, the estimate got prepared by him cannot be relied upon, moreover the estimate is on very exorbitant side i.e. for Rs. 6,47,144/-. The Insured's Declared Value of the vehicle in question is 3,43,980/- as per Cover note Ex. C-2 . The complainant has not placed any document on file to show that he has suffered loss equivalent to I.D.V. The support can be sought from the law laid down by the Hon'ble Supreme Court of India in 2009 (3) CLT 417 titled Sikka Papers Limited Vs. National Insurance Co. Ltd., wherein it has been held that :- “..............Held Surveyor's report is not the last word but then there must be legitimate reasons for departing from such report – The complainant has failed to show any reason justifying rejection of Surveyor's report.”

12. The opposite parties have also taken objection that complainant has not impleaded Kotak Mahindra as party to the complaint. This objection is not tenable as the Complainant is the master of his case. He cannot be directed to file a case against the party against whom he does not want to contest. Moreover, no relief has been sought against the financer i.e. Kotak Mahindra.

13. In view of facts, circumstances and the record produced on file by the parties, this Forum is of the view that there is deficiency in service on the part of the opposite parties in repudiating the claim of the complainant. Hence, in our opinion it would meet the ends of justice if the complainant is allowed with compensation of Rs. 10,000/-. Thus, this complaint is accepted with cost of Rs. 3,000/-. The opposite parties are directed to pay Rs. 99,600/- with interest @9% P.A. from the date of repudiation till realisation to the complainant alongwith cost of Rs. 3,000/- and compensation amounting to Rs. 10,000/-, within a period of 30 days from the date of receipt of copy of this order.

14. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced :

21-09-2010

(Vikramjit Kaur Soni)

President

(Dr. Phulinder Preet)

Member

(Amarjeet Paul)

Member